THIS SUBSCRIPTION AGREEMENT is made on 8 October 2001 EXHIBIT 5
BETWEEN:
(1) XXXXXXXXX FINANCE (NUMBER ONE) LIMITED, a private limited company
incorporated under the laws of England and Wales with its registered
office at 00 Xxxxxx Xxxxxx, Xxxxxx, XX0X 0XX and registered number
4292654 (the "Issuer"); and
(2) DEUTSCHE BANK AG LONDON, a stock corporation incorporated in the Federal
Republic of Germany (HRB Xx. 00 000, Xxxxxxxx Xxxxx xx Xxxxxxxxx xx Xxxx)
("XX").
WHEREAS
(A) The Issuer has authorised the creation and issue of a L1,239,062,086.87
Exchangeable Note due 2005 (the "Note"). The issue of the Note is
referred to as the "Issue".
(B) The Issuer proposes, on and subject to the terms and conditions stated
herein, to issue the Note to DB, and DB has agreed to subscribe and pay
for the Note, upon and subject to the terms and conditions hereinafter
set out.
1. DEFINITIONS AND INTERPRETATION
1.1 Capitalised terms in this Agreement (including the recitals hereto)
shall, except where the context otherwise requires and save where otherwise
defined in this Agreement, have the meanings given to them in the terms and
conditions of the Note (the "Conditions").
1.2 References herein to "this Agreement" shall be construed as references to
this Subscription Agreement and any agreement supplemental hereto all as the
same may be amended or supplemented in accordance with the terms hereof from
time to time.
1.3 References in this Agreement to Clauses, sub-Clauses, paragraphs and
sub-paragraphs shall be construed as references to the clauses, sub-clauses,
paragraphs and sub-paragraphs respectively of this Agreement.
2. SUBSCRIPTION OF THE NOTE AND PUBLICITY
2.1 The Issuer and DB hereby record the arrangements among them for the
subscription and issue of the Note. On the terms and subject to the conditions
of this Agreement, the Issuer undertakes to issue, on the Issue Date (as
defined below), the Note in the original principal amount of
L1,239,062,086.87 in registered form.
2.2 On the terms and subject to the conditions of this Agreement, DB agrees
to subscribe and pay for the Note on the date hereof (the "Issue Date") at 100
per cent. of its initial principal amount (the "Issue Price").
2.3 DB shall not make any announcement or statement in public in respect of
the Note (save to the extent required by law or the applicable rules of any
relevant stock exchange or regulatory body) except with the prior consent of
the Issuer.
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3. REPRESENTATIONS AND WARRANTIES BY THE ISSUER
3.1 As a condition of the agreement by DB to subscribe and pay for the Note
in accordance with Clause 2 and in consideration thereof, the Issuer
represents and warrants to DB as at the date hereof that:
(a) Incorporation: it is duly incorporated and validly existing under the
laws of England and Wales, with full power and capacity to conduct its
business to issue the Note, to execute each of this Agreement, the
Registrar Agreement, the subscription agreement relating to B Shares of
the Issuer dated 8 October 2001 between the Issuer and Deutsche Bank AG,
the Deed of Security (collectively, the "Agreements") and the share
purchase agreement dated 6 October 2001 between the Issuer and Vivendi
Universal S.A. (the "Share Purchase Agreement") and to undertake and
perform the obligations expressed to be assumed by it therein;
(b) Validity of agreements: the Share Purchase Agreement and each of the
Agreements has been duly authorised, executed and delivered by the Issuer
and constitute or will constitute legal, valid and binding obligations of
the Issuer enforceable in accordance with its respective terms;
(c) Validity of Note: the Issue has been duly authorised by the Issuer and,
when duly issued, the Note will constitute legal, valid and binding
obligations of the Issuer enforceable in accordance with its terms;
(d) Consents: no action or thing is required to be taken, fulfilled or done
(including without limitation the obtaining of any consent or licence or
the making of any filing or registration) for the Issue or the compliance
by the Issuer with each of the terms of the Note, or the Agreements
except for the filing of the Form 395 in relation to the Deed of
Security;
(e) Compliance: the execution and delivery of the Share Purchase Agreement
and the Agreements, the creation and issue of the Note and compliance
with their terms do not and will not:
(i) conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, the documents
constituting the Issuer or any indenture, trust deed, mortgage or
other agreement or instrument to which the Issuer is a party or by
which it or any of its properties is bound; or
(ii) infringe any existing applicable law, rule, regulation, judgment,
order or decree of any government, government body or court or
regulatory body, domestic or foreign, having jurisdiction over the
Issuer or any of its properties;
(f) Litigation: there are no pending actions, suits or proceedings, actual or
threatened, against or affecting the Issuer or any of its assets or
properties and no such actions, suits or proceedings are threatened or
contemplated;
(g) Business: the Issuer has not commenced to trade since its incorporation
and has no assets, other than a balance in its accounts equal to the
amount standing to the credit
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of its share capital account, or liabilities; and, other than the
Agreements and the Share Purchase Agreement, no agreement of any nature
has been entered into by it since its incorporation;
(h) Events of default: no event has occurred or circumstance arisen which,
had the Note already been issued, would (whether or not with the giving
of notice and/or the passage of time and/or the fulfilment of any other
requirement) constitute an Event of Default.
3.2 DB represents and warrants to the Issuer as at the date hereof that:
(a) it is not a "U.S. person" (as defined in Regulation S ("Regulation S") of
the United States Securities Act of 1933, as amended (the "Securities
Act"));
(b) it has not, and it and each of its affiliates will not, engage in any
"directed selling efforts" within the meaning of Regulation S of the
Securities Act or offer or sell the Note in the United States by means of
any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act in connection with any
distribution of the Note, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or
radio, or (ii) any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising;
(c) no action has been or will be taken in any jurisdiction by it that would
permit a public offering of the Note. DB agrees that it will comply with,
and obtain any consent, approval or permission required under, all
applicable laws and regulations in each jurisdiction in which it
acquires, offers, sells or delivers the Note. It will also ensure that no
obligations are imposed on the Issuer in any such jurisdiction as a
result of any of the foregoing actions. DB undertakes to the Issuer to
obtain any permission required by it for the acquisition, offer, sale or
delivery by it of the Note under the laws and regulations in force in any
jurisdiction to which it is subject or in or from which it makes any
acquisition, offer, sale or delivery; and
(d) it is a bank for the purposes of Section 840A of the Income and
Corporation Taxes Act 1988 who is acquiring the Note in the ordinary
course of its banking business whose profits are brought into the charge
to corporation tax.
3.3 DB acknowledges that the Note has not been registered under the
Securities Act and hereby expressly agrees that the Note may not be offered,
sold or otherwise transferred except pursuant to an effective registration
statement under, or an exemption from the registration requirements of, the
Securities Act. DB expressly agrees that the Issuer is under no obligation to
register the Note under the Securities Act and that if not offered, sold,
pledged or otherwise transferred pursuant to an effective registration
statement under the Securities Act, the Note may be offered, sold, pledged or
otherwise transferred only (i) outside of the United States in an offshore
transaction in accordance with Regulation S under the Securities Act or (ii)
pursuant to an exemption from registration under the Securities Act including
the exemption provided by Rule 144 thereunder (if available), in any case, in
accordance with any applicable securities laws of any state of the United
States. Neither DB nor its affiliates, nor any persons acting on its or their
behalf, have engaged or will engage in any directed
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selling efforts with respect to the Note, and DB, its affiliates and all
persons acting on its or their behalf have complied and will comply with the
offering restrictions requirement of Regulation S in connection with its
acquisition of the Note. DB agrees that, in connection with any distribution
of the Note, at or prior to confirmation of sale of the Note, DB will have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases the Note from it a confirmation or notice
to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold except pursuant to an effective registration
statement under, or an exemption from the registration requirements
of, the Securities Act."
Terms used in this Clause 3.3 have the meanings given to them by Regulation S.
4. UNDERTAKINGS
4.1 The Issuer undertakes to DB that it will:
(a) indemnify and hold harmless DB (and its officers, directors or employees
and each person by whom it is controlled for the purposes of the
Securities Act) against: (i) any claim, demand, action, liability,
damages, cost, loss or expense (including, without limitation, all
reasonable legal fees and any applicable value added tax) which it may
incur as a result or arising out of or in relation to any inaccuracy or
alleged inaccuracy contained in, or any breach or alleged breach of any
of the representations and warranties in Clause 3.1 or any breach or
alleged breach of any of the undertakings on the part of the Issuer
contained in the Agreements; and (ii) any tax, levy, impost, duty or
other charge or withholding of a similar nature (including any penalty or
interest payable in connection with any failure to pay or any delay in
paying any of the same) which it may incur as a result of doing all
things required to be done by it under the Conditions and the Agreements
(other than tax on overall net income) PROVIDED THAT the Issuer shall be
under no liability for any breach of the representations or warranties in
Clause 3.1 or for any breach of any of the undertakings on the part of
the Issuer contained in this Agreement if, and to the extent that, a
claim arises wholly from, or, having arisen, is increased as a result of
any wilful default, negligence or breach by DB of any of its obligations
under this Agreement;
(b) pay:
(i) any stamp, issue, registration, documentary or other taxes of a
similar nature and duties, including interest and penalties, payable
on or in connection with the creation, issue and offering of the
Note, and/or the execution or the delivery of the Agreements; and
(ii) in addition to any amount payable by it under the Agreements, any
value added, turnover or similar tax payable in respect of that
amount (and references in this Agreement to such amount shall be
deemed to include any taxes so payable in addition to it);
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(c) file, or procure the filing of, the Form 395 in relation to the Deed of
Security; and
(d) not have any Subsidiaries.
4.2 DB undertakes to the Issuer that it shall procure that any person
purchasing the Note from DB shall (a) agree to give equivalent undertakings
from itself to those set out in Clause 2.3 and this Clause 4.2 from DB and (b)
provide a warranty in the form set out in Clause 3.2(d).
4.3 If any claim, demand or action is brought or asserted in respect of which
one or more persons (each an "Indemnified Person") is entitled to be
indemnified by another person (the "Indemnifier") under Clause 4.1 (each a
"Claim"), the following provisions shall apply:
(a) Notification: each Indemnified Person shall promptly notify the
Indemnifier in writing (but failure to do so shall not relieve the
Indemnifier from liability);
(b) Assumption of defence: the Indemnifier shall, subject to Clause 4.4, be
entitled to assume the defence of the relevant Claim including the
retention of legal advisers approved by each Indemnified Person, (such
approval not to be unreasonably withheld) subject to the payment by the
Indemnifier of all legal and other expenses of such defence;
(c) Separate representation: if the Indemnifier assumes the defence of the
relevant Claim, each Indemnified Person shall be entitled to retain
separate legal advisers and to participate in such defence but the legal
or other expenses incurred in so doing shall, subject to Clause 4.4, be
borne by such Indemnified Person unless the Indemnifier has specifically
authorised such retention or participation.
4.4 Notwithstanding Clause 4.3, an Indemnified Person may retain separate
legal advisers in each relevant jurisdiction and direct the defence of the
relevant Claim and the Indemnifier shall reimburse such Indemnified Person for
any legal or other expenses reasonably so incurred if:
(a) Indemnifier's failure: the Indemnifier (having assumed such defence)
fails properly to make such defence or to retain for such purpose legal
advisers approved by such Indemnified Person (such approval not to be
unreasonably withheld); or
(b) Conflict of interest: such Indemnified Person has reasonably concluded
that the use of any legal advisers chosen by the Indemnifier to represent
such Indemnified Person would present such legal advisers with a conflict
of interest; or
(c) Different defences: the actual or potential defendants in, or targets of,
such Claim include both the Indemnifier and such Indemnified Person and
such Indemnified Person has reasonably concluded that there are legal
defences available to it which are different from or additional to those
available to the Indemnifier.
4.5 The Indemnifier shall not, without the prior written consent of each
Indemnified Person, settle or compromise, or consent to the entry of judgment
with respect to, any pending or threatened Claim (irrespective of whether any
Indemnified Person is an actual or
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potential defendant in, or target of, such Claim) unless such settlement,
compromise or consent includes an unconditional release of each Indemnified
Person from all liability arising out of the matters which are the subject of
such Claim. The Indemnifier shall not be liable to indemnify any Indemnified
Person where the relevant Claim has been settled or compromised without its
written consent (which shall not be unreasonably withheld).
5. CLOSING
5.1 At 11.00 a.m. (London time) on the Issue Date (or such other time as may
be agreed between DB and the Issuer) (the "Issue Date"), the Issuer will issue
the Note.
5.2 Against such issue, DB will pay or cause to be paid to the Issuer the
subscription moneys (net of any amounts payable by the Issuer to DB) for the
Note for which DB has agreed to subscribe and pay pursuant to Clause 2. Such
payment shall be made by DB in pounds sterling in same day settlement funds to
an account with a bank in London which has been previously notified in writing
by the Issuer to DB prior to the Issue Date, evidence of such payment taking
the form of a confirmation by DB that it has made the relevant payment to the
Issuer.
6. EXPENSES
6.1 The Issuer agrees to pay the amounts separately agreed between the Issuer
and DB including (without limitation) costs and expenses (including any stamp
duty or other taxes payable) in connection with the preparation of the Note
and all other documents relating to the issue of the Note.
6.2 In addition to the expenses referred to above the Issuer agrees to
reimburse DB against production of invoices for all expenses reasonably
incurred by DB as agreed by the Issuer and DB in connection with the issue and
purchase of the Note (including legal, telephone, travelling and out-of-pocket
expenses).
6.3 All costs and expenses referred to in this Clause 6 shall be payable
notwithstanding any release or discharge of DB pursuant to the terms of this
Agreement.
6.4 The Issuer agrees to pay value added tax that is payable in respect of
all costs, fees and expenses referred to in this Clause 6.
7. SURVIVAL
The representations, warranties, agreements, undertakings and indemnities in
this Agreement shall continue in full force and effect despite completion of
the arrangements set out herein for the issue of the Note and regardless of
any investigation made by or on behalf of any party hereto.
8. TIME
Any date or period specified herein may be postponed or extended by mutual
agreement among the parties hereto but as regards any date or period
originally fixed on or postponed or extended, time shall be of the essence.
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9. NOTICES
9.1 Any communications shall be given by letter, or facsimile transmission,
or by telephone and shall be sent:
(a) if to the Issuer, to it at
00 Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Telephone: x00 (0)00 0000 0000
Fax: x00 (0)00 0000 0000/2
Attention: Directors/Company Secretary
(b) if to DB, to it at:
Xxxxxxxxxx Xxxxx
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Telephone: x00 (0)00 0000 0000
Fax: x00 (0)00 0000 0000/7545 1899
Attention: Xxxx Xxxxxxxxx/Xxxxxxx Xxxxx
9.2 Mode of Service: Save as specifically otherwise provided in this
Agreement any notice, demand or other communication to be served under this
Agreement will be in writing and will be served only by posting by first class
post or by personally delivering the same or sending the same by facsimile
transmission to the party to be served at its address, or facsimile number
shown above or at its registered office or at such other address or number as
it may from time to time notify in writing to the other parties hereto. Any
notice, demand or other communication to be served by the Issuer on DB will be
effective only on receipt by DB and then only if the same is expressly marked
for the attention of the department or officer (if any) specified above (or
such other department or officer as DB may from time to time specify for this
purpose).
9.3 Deemed Service: A notice or demand served by first class post in the
United Kingdom will be deemed served 48 hours after posting or when delivered
if served personally. A notice or demand served overseas by air mail will be
deemed duly served 72 hours after posting or when delivered if served
personally. A notice or demand sent by facsimile transmission will be deemed
served at the time of transmission unless served on a non-Business Day or
after 5.00 p.m. London time in which case it will be deemed served at 9.00
a.m. on the following Business Day.
9.4 Proof of Service: In proving service of any notice it will be sufficient
to prove, in the case of a letter, that such letter was properly stamped or
franked first class, addressed and placed in the post or, in the case of
personal delivery, when left at the correct address and, in the case of a
facsimile transmission, that such facsimile was duly transmitted to the
facsimile number of the addressee referred to in Clause 9.1 above.
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10. GOVERNING LAW, JURISDICTION
Choice of Law
10.1 This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
Submission to Jurisdiction
10.2 For the benefit of DB, the Issuer agrees that the courts of England are
to have exclusive jurisdiction to settle any disputes which may arise in
connection with the creation, validity, effect, interpretation or performance
of, or the legal relationships established by, this Agreement (including,
without limitation, claims for set-off or counterclaim) or otherwise arising
in connection with this Agreement and for such purposes irrevocably submit to
the jurisdiction of the English courts.
Consent to Enforcement
10.3 The Issuer hereby consents generally in respect of any proceedings to the
giving of any relief or the issue of any process in connection with such
proceedings, including (without limitation) the making, enforcement or
execution against any property whatsoever (irrespective of its use or intended
use) of any order or judgement which may be made or given in such proceedings.
11. THIRD PARTY RIGHTS
Except as provided herein, a person who is not a party to this Agreement shall
have no right under the Contracts (Rights of Third Parties) Xxx 0000 to
enforce any of the terms hereof.
12. COUNTERPARTS
This Agreement may be executed in separate counterparts and by each party
separately on a separate counterpart, and each such counterpart, when so
executed, shall be an original. Such counterparts shall together constitute
one and the same instrument.
13. HEADINGS
The descriptive headings of this Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
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IN WITNESS WHEREOF the parties hereto have duly executed this Agreement on the
date first above written.
For and on behalf of
XXXXXXXXX FINANCE (NUMBER ONE) LIMITED
By: /s/ Xxxxxxx X. Constant
--------------------------
Name: Xxxxxxx X. Constant
Title: Director
For and on behalf of
DEUTSCHE BANK AG LONDON
By: /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
Title: Vice-President
By: /s/ Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Title: Vice-President
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CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION........................................... 1
2. SUBSCRIPTION OF THE NOTE AND PUBLICITY................................... 1
3. REPRESENTATIONS AND WARRANTIES BY THE ISSUER............................. 2
4. UNDERTAKINGS............................................................. 4
5. CLOSING.................................................................. 6
6. EXPENSES................................................................. 6
7. SURVIVAL................................................................. 6
8. TIME..................................................................... 6
9. NOTICES.................................................................. 7
10. GOVERNING LAW, JURISDICTION.............................................. 8
11. THIRD PARTY RIGHTS....................................................... 8
12. COUNTERPARTS............................................................. 8
13. HEADINGS................................................................. 8
1
8 October 2001
XXXXXXXXX FINANCE (NUMBER ONE) LIMITED
as Issuer
and
DEUTSCHE BANK AG LONDON
------------------------------------------------------
SUBSCRIPTION AGREEMENT
------------------------------------------------------
Milbank, Tweed, Xxxxxx & XxXxxx
London
